United States v. Daniel Ushery, Jr.
785 F.3d 210
6th Cir.2015Background
- Ushery pled guilty to distribution of crack cocaine after a district judge, in a back-and-forth with government and defense counsel, allowed plea discussions during a teleconference and an August 14 rearraignment.
- The August 6, 2013 teleconference involved only counsel and the district court, not Ushery.
- The August 14 rearraignment featured ongoing plea negotiations in the court’s presence, with the government offering to strike an appeal-waiver and the court initially endorsing changes to the plea terms.
- Ushery ultimately pleaded guilty to Count 1 after the plea terms were modified to remove the appeal waiver and address forfeiture discussions.
- The Presentence Report began with a career-offender baseline, and the district court imposed an upward variance to 252 months, followed by ten years of supervised release.
- Ushery appeals on Rule 11(c)(1) participation, presence at the August 6 teleconference, and substantive reasonableness of the sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court violated Rule 11(c)(1) by participating in plea negotiations | Ushery argues district court’s participation tainted the plea | The court’s involvement was permissible to manage proceedings | No plain-error affecting substantial rights; judgment affirmed |
| Whether Ushery’s absence from the August 6 teleconference violated his right to be present | Ushery’s presence at critical stages was required | Teleconference was administrative, not a critical stage | No error; teleconference not a critical stage; absence harmless |
| Whether the 252-month sentence is substantively reasonable | Sentence is unreasonable given guidelines and mitigation | Upward variance justified by seriousness and Ushery’s history | Sentence affirmed as substantively reasonable |
Key Cases Cited
- Davila v. United States, 133 S. Ct. 2139 (2013) (discusses standard of review for Rule 11(c)(1) errors and plain vs harmless error on remand)
- Davila v. United States, 749 F.3d 982 (11th Cir. 2014) (Davila II; confirms plain error not always required; prejudice analysis factors)
- United States v. McCreary-Redd, 475 F.3d 718 (6th Cir. 2007) (plain-error framework for Rule 11 issues in some contexts)
- United States v. Vonn, 535 U.S. 55 (2002) (harmless error standard under Rule 52(a))
- United States v. Harrell, 751 F.3d 1235 (11th Cir. 2014) (judge’s participation in plea negotiations problematic; not tolerated as best practice)
- United States v. Cano-Varela, 497 F.3d 1122 (10th Cir. 2007) (caution against court involvement in plea negotiations)
- United States v. Castro, 736 F.3d 1308 (11th Cir. 2013) (prejudice analysis in Rule 11(c)(1) context)
- United States v. Barrett, 982 F.2d 193 (6th Cir. 1992) (coercive implications of judge’s participation in plea discussions)